The opinion of the court was delivered by: Getzendanner, District Judge.

MEMORANDUM OPINION AND ORDER

This action under 42 U.S.C. § 1983 is before the court on the
motion for summary judgment of all defendants except the
Village of Mokena ("defendants"). No affidavits and depositions
are referred to in the parties' memoranda. Defendants' motion
for summary judgment assumes as true the facts as alleged in
the Amended Complaint. Those facts are briefly as follows.

In their motion for summary judgment, defendants argue
simply that they are "immune from suit by reason of the
exercise of their legislative responsibilities." (Motion for
Summary Judgment.) Coffey counters that the action of Quinn
and the Trustees in terminating his employment was an
administrative, as opposed to legislative, act, triggering
only the good faith, qualified immunities due administrative
activity. Since the Amended Complaint alleges bad faith,
Coffey continues, summary judgment on this issue is
inappropriate at this stage.

In Reed v. City of Shorewood, 704 F.2d 943 (7th Cir. 1983),
the Seventh Circuit held that local legislators have absolute
individual immunity from § 1983 liability for their
"legislative action[s]." Id. at 952. This decision, far from
deciding the issue now before the court, only begins the
inquiry. Immunity questions must be determined not by the
labels of the officers whose acts are under scrutiny but by the
nature of these acts. See Imbler v. Pachtman, 424 U.S. 409, 96
S.Ct. 984, 47 L.Ed.2d 128 (1976); Hampton v. City of Chicago,
484 F.2d 602, 608, 609 (7th Cir. 1973), cert. denied,
415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). In this case, Quinn
and the Trustees are alleged to have wrongfully terminated
Coffey. The court must determine whether this action is
legislative or administrative (or executive) in nature.

Reed does not solve this problem, for that case involved
local legislators' enactment of an ordinance reducing the
number of Class A liquor licenses in the Village of Shorewood
from four to three, clearly a legislative act. Courts
confronting this issue have formed guidelines for determining
whether an act is legislative or administrative. In Barbaccia
v. County of Santa Clara, 451 F. Supp. 260 (N.D.Cal. 1978),
defendant city council members, sued for their participation in
zoning decisions regarding plaintiff's land, claimed immunity
for their legislative acts. The court explained, however, that

the actions set forth in the complaint do not
involve the promulgation of legislation of a
general or prospective nature, rather, they
depict discretionary determinations with respect
to a single parcel of land.

Id. at 267 (concluding such decisions merit qualified
immunity). Consistent with this description of a legislative
act is the test outlined by the court in Three Rivers
Cablevision v. City of Pittsburgh, 502 F. Supp. 1118 (W.D.Pa.
1980). There, plaintiff bidder for a city cable television
contract claimed the city council's failure to award him the
contract violated his civil rights. The municipal city council
defendants asserted absolute legislative immunity as a defense
to plaintiff's action, while plaintiff asserted the council
acted in an administrative or executive capacity. The court
first noted that the act in question was "the adoption by
council of the resolution authorizing the award of the contract
to Warner [not the plaintiff]." Id. at 1135. The court then
explained that

Legislative acts are said to be broad, general
policy statements establishing guidelines by
which the future conduct of an entire group of
persons falling within a particular
classification will be judged. [Citation
omitted.] By contrast, executive or
administrative acts in this context generally
consist of the application of legislation to
specific situations. [Citation omitted.]
Thus, . . . while an amendment of a local zoning
provision having application to all property
within a certain district was a legislative act,
the denial of a variance under that legislation
to a particular individual was an administrative
act. Likewise, the Supreme Court recently held
that the promulgation of ethical rules by a state
supreme court was a legislative act, whereas the
enforcement of those rules by the court was not
legislative and thus could not be defended on the
basis of immunity.
Supreme Court of Virginia v. Consumers Union,
446 U.S. 719 [100 S.Ct. 1967, 64 L.Ed.2d 641] . . .
(1980).

Id. at 1136. Given this standard, the court held that the
council's action was not legislative, regardless of the fact
that it was accomplished by "resolution," involving as it did
the application to a specific situation of broad policies
already enunciated. Id.*fn1 Finally, in Adler v. Lynch,
415 F. Supp. 705 (D.Neb. 1976), plaintiff complained that local
officials, among whose duties included the enactment of local
ordinances, violated her constitutional rights by their
decisions with respect to her zoning variance. The court held
that their actions in determining the merits of plaintiff's
case were

distinguishable from the type of judgment and
discretion exercised by judges and legislators
who enjoy absolute immunity under § 1983 because
they must conceive public policy from the myriad
policy options open to the sovereign [citations
omitted] and similar in significant respects to the
type of discretion exercised by executive officials
who have a more limited jurisdiction, and, must
confine their discretion to matters which are more
or less specifically defined within the state's
public policy.

Id. at 712.

Many cases exist in which local legislators apply already
enacted ordinances or already recognized policies to specific
instances. The court is aware of few cases involving facts
similar to those now before it. Defendants claim that
Goldberg v. Village of Spring Valley, 538 F. Supp. 646 (S.D.N.Y.
1982), is such a case that supports its argument that Coffey's
discharge was legislative in character. A close reading of the
case reveals that it did not decide whether a termination was
legislative or administrative. In Goldberg, plaintiff Irving
Goldberg was an Assistant Village Attorney for the Village of
Spring Valley and plaintiffs Stuart Goldberg and Hyman Cohen
were employed by the Spring Valley Urban Renewal Agency
("SVURA"). A new village administration, which all three
plaintiffs had opposed, was elected. The new mayor, with the
approval of his board of trustees, terminated Irving Goldberg
from his position. In addition, the board of trustees
authorized the transfer of all SVURA funds to the village,
thereby eliminating the positions held by Cohen and Stuart
Goldberg. The board of trustees moved to dismiss the
allegations against them, claiming legislative immunity. The
mayor did not so move, hence the application of immunity to his
action in terminating Irving Goldberg was not before the court.
The acts of the trustees complained of were "the creation of
the Department of Housing and Community Development, the
transfer of the funds and programs of [SVURA to the village],
and the approval of the appointments of individuals to
positions that performed the duties previously performed by
plaintiffs." Id. at 650. The court held these actions to be
clearly legislative, as "reflecting policy objectives." Id. The
dismissals in question were actually those necessitated by
program funding changes.

Another dismissal case, Wells v. Hutchinson, 499 F. Supp. 174
(E.D.Tex. 1980), held that a defendant's actions in terminating
plaintiff's employment was legislative. Id. at 185 n. 7. There,
plaintiff's termination was caused by a loss of funding for the
program in which he was employed, not through a simple firing,
and hence, as ...

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